[2024] UKUT 00141 (IAC)

The applicant is a national of Jamaica and was born on 30^th January 1979. He arrived in the United Kingdom on 10^th September 2000 and was ultimately granted indefinite leave to remain in the United Kingdom on 23^rd October 2007. On 8^th May 2017 the applicant was sentenced to a total of 48 months imprisonment as a result of his conviction for possession with intent to supply a class B drug, abstracting electricity and two offences of racially aggravated intentional harassment.

The respondent took action to deport the applicant including the making of a deportation order on 13^th July 2018. The applicant responded to this deportation order by making human rights representations on 19^th December 2018. This human rights claim was refused by the respondent without a right of appeal, in error, on 8^th February 2019. The applicant made further representations on 21^st March 2019, which were also refused without a right of appeal in error on 17^th May 2019. These decisions were subsequently withdrawn and the applicant’s human rights claim was refused with a right of appeal on 31^st May 2019, a decision which the applicant appealed to the First-tier Tribunal (“FtT”). The applicant was entitled to be released from prison on 8^th May 2019 but he continued to be detained under immigration powers. On 19^th August 2019 the applicant was granted immigration bail by the FtT subject to conditions including weekly reporting, a residence condition, a prohibition on work and study and a requirement that he attend his probation meetings as he was still on licence.

On 2^nd November 2021 the FtT heard the applicant’s appeal against the refusal of his human rights claim and by a decision of the 17^th November 2021 the applicants appeal was dismissed. On 1^st December 2021 the applicant applied for permission to appeal the FtT decision. The FtT refused his application for permission to appeal and so on 15^th March 2022 the applicant applied to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) for permission to appeal. Notwithstanding this outstanding appeal, the applicant was detained under immigration powers on 5^th May 2022. The following day he was served with removal directions which had to be cancelled on 13^th May 2022 owing to the appeal to the UT remaining outstanding. On the same day the FtT granted the applicant immigration bail subject again to a number of conditions on this occasion including electronic monitoring. The condition was imposed pursuant to paragraph 2(1)(e) of Schedule 10 of the Immigration Act 2016 (see below). By virtue of the order of the FtT Judge dated 13^th May 2022 “future management including any application for variation shall be exercised by the Secretary of State pursuant to paragraph 6(3) of Schedule 10 to the Immigration Act 2016”.

On 17^th May 2022 the applicant was fitted with a GPS tag and released from detention. Coincidentally on the same date the UT granted the applicant permission to appeal the decision of the FtT. On 29^th June 2022 the applicant’s solicitors wrote a pre-action protocol letter to the respondent challenging the decision to impose the electronic monitoring condition on the applicant and complaining amongst other matters that to do so breached the applicants Article 8 rights. On the same date the applicant’s solicitors emailed the respondent reporting that the applicant’s tag was too tight and requesting that it be loosened as it was causing him discomfort and pain. Further, it was pointed out that the tag required frequent charging at least every 4-5 hours which was causing the applicant distress due to fear of the device running out of battery charge and the restrictive nature of having to charge the device so frequently.

The applicant’s solicitors commissioned a forensic psychiatric report from Dr Nuwan Galappathie, who examined the applicant on 21^st August 2022 and produced a report dated 31^st August 2022. Dr Galappathie expressed the view that the applicant was suffering with severe depression related to his deportation proceedings and the imposition of the GPS tag. Dr Galappathie also considered that the applicant suffered from a generalised anxiety disorder which he considered had been caused by the GPS tag. Furthermore, Dr Galappathie was of the opinion that the distress of having a GPS tag had triggered the development of symptoms of PTSD in the applicant. He concluded that the applicant’s depression, anxiety and PTSD had been caused by the imposition of electronic monitoring and the GPS tag, and that his mental conditions would be assisted by the removal of the tag. This report was sent to the respondent under cover of a letter dated 6^th September 2022, in which the applicant’s solicitors requested the respondent review the requirement for the electronic monitoring condition. The provision of this medical evidence was followed on 14^th September 2022 by the applicant’s solicitors serving on the respondent a copy of a Probation Service OASys report on the applicant assessing him as posing a low risk of reoffending, and stating that the Probation Service had no concerns about the applicant absconding.

On 17^th September 2022 the UT heard the applicant’s appeal against the FtT decision on his human rights appeal. Although, in accordance with the respondent’s policy, a review of the electronic monitoring ought to have taken place either after receipt of the applicant’s pre-action protocol letter on 29^th June 2022 or three months after the initial imposition of the tag, that is to say by 17^th August 2022, it was not until 10^th October 2022 that the respondent undertook a review of the imposition of electronic monitoring. Whilst it was initially disputed, it is now conceded by the respondent that the review which was undertaken on 10^th October 2022 was unlawful, in particular in relation to the assessment of psychiatric evidence within that review and the question of diagnosis. The review led to the decision that the imposition of electronic monitoring by way of a GPS tag should be maintained.

These proceedings were commenced on 7^th November 2022. On 23^rd November 2022 the applicant was visited at his home address and a new GPS tag was installed by the respondent’s contractors. The GPS tag was not sufficiently charged by the installers and ran out of charge within an hour of being fitted. The applicant was concerned that despite charging the tag a light on it continued to flash. On 24^th November 2022 the applicant told his reporting officer that the GPS tag was flashing, and he was advised that the reporting officer would contact the respondent in order for the tag to be checked.

Prior to progressing the account of the facts of this case further, it is probably helpful context to set out the respondent’s position, as set out at the hearing, in relation to the period between 23^rd November 2022 and 11^th May 2023. The respondent’s position was as follows:

“The GPS tag, according to the respondent’s investigation, was fully operational with no faults during the period between 23^rd November 2022 and 11^th May 2023. However, the respondent is content for the Upper Tribunal to decide this Judicial Review claim on the basis that the GPS tag was not working for five distinct periods during that time as identified in the Applicants document at pages 110-111 of Core Bundle, volume 1. The Respondent is also content for the Upper Tribunal to proceed on the basis that this was not the fault of the Applicant, though she makes no concessions as to the Applicant’s conduct.”

At pages 110-111 of the Core Bundle is an analysis of the trail data collected from the applicant’s GPS tag. The data shows, in summary, that the applicant’s GPS tag was not working from 23^rd November 2022 to 5^th January 2023, or between 7^th January 2023 and 23^rd January 2023, or between 24^th January 2023 and 2^nd March 2023, or between 2^nd March 2023 and 23^rd April 2023. Another way of expressing this data is that out of the 197 days covered by this period the tag was only dialling in on 11 days.

On 2^nd December 2022 the respondent was informed by the contractors who had installed the GPS tag that it was not sufficiently charged. The contractors indicated that the subject had entered a missing status since 23^rd November 2022 and that this required a further visit in order to rectify the issue. It appears that in early January 2023 the respondent’s contractors made various attempts to visit the applicant in order to investigate the problem with the GPS tag. None of these attempts were successful.

On 24^th January 2023 it is clear that Ms Helen Symonds, Executive Officer in the respondent’s EM hub, which is contained within the respondent’s Foreign National Offenders Returns Command, was aware that the applicant’s solicitors were questioning whether the tag had sufficient GPS signal. She asked the respondent’s contractors to confirm the current status of the GPS device on the basis that it had last dialled in on 24^th January 2023, and she required confirmation as to whether or not there was a problem with the GPS signal or with the battery of the device. In a further email reporting this enquiry to one of her colleagues Ms Symonds records that she had spoken with the applicant and the respondent’s contractors “on a number of occasions, to arrange suitable times for EMS [the contractors] to visit, and they have either turned up late or on a different date, and he has not been available”. On the advice of her colleague Ms Symonds then escalated the matter to the respondent’s electronic monitoring Service Delivery Team.

The correspondence in relation to the investigation of the tag between the respondent’s staff continued inconclusively, and on 1^st February 2023 a Team Manager at the respondent’s contractors, having apologised for failing to realise how urgent the query was, provided the following view:

“To confirm, we do still get data from this tag despite the failed installation status, but because the initial connection between the tag and the servers was not successful, we could never confirm with 100% accuracy that all relevant data is being transmitted to the systems successfully. An additional installation visit is required to run through the whole install process and ensure that the tag is calling in all the data successfully before the officers leave the site is the only real solution that would stop these issues from occurring again in the future. It has been noted that the signal around his address is relatively poor which has contributed to these installation issues previously, but if we are able to get an appointment made with Mr Nelson when he will be available then we can go out and resolve these issues once and for all.”

This email was forwarded by Ms Symonds to her colleague, and subsequently it appears that on 6^th February 2023 it was decided the matter was to be left for the time being as Ms Symonds needed to “wait for confirmation that a further visit can be requested while the JR is ongoing”. It seems that advice was required from lawyers before further action could be taken.

It appears that nothing further happened until 21^st April 2023, when a litigation case worker in the respondent’s department communicated the grant of permission in these proceedings to Ms Symonds, and asked for her advice in relation to when the electronic monitoring condition in respect of the applicant was to be reviewed. As a result of this email, it appears Ms Symonds checked the Breaches Stream Spreadsheet and observed that notes had been added on 5^th February 2023 “to say that no action was to be taken as the legal team are dealing with it”. Ms Symonds noted in an email to her colleague in which this quote appears that no further visits had been arranged since 15^th January 2023 and the last GPS dial in was on 24^th January 2023. She asked her colleague if he was happy for her to undertake a review and inform the Breaches Team to take action in relation to further visits. Her colleague responded that he was “not sure about further activity as there is an ongoing JR”. Her colleague was, however, content for her to undertake the review of the electronic monitoring condition.

A further review of the electronic monitoring condition was undertaken on 21^st April 2023, but it contained the same legal error as the review of 10^th October 2022. The review supported the continued maintenance of the electronic monitoring condition. Ultimately, after further internal correspondence, the applicant was fitted with a new GPS tag on 11^th May 2023 which functioned fully thereafter.

Whilst the events pertaining to the applicant’s GPS tag were ongoing the UT issued a decision on 26^th January 2023 dismissing the applicant’s appeal in relation to the FtT decision in his human rights appeal. On 7^th February 2023 the applicant lodged his appeal against the decision of the UT with the Court of Appeal. On the 28^th March 2023 permission was granted for this judicial review to proceed.

The respondent instructed Dr Giuseppe Spoto to undertake a psychiatric examination of the applicant and this occurred on 10^th July 2023. Dr Spoto’s opinion is that the applicant is suffering from an Adjustment Disorder which he describes as a relatively minor illness. Dr Spoto disagreed with the opinion of Dr Galappathie that the applicant was suffering from a generalised anxiety disorder or severe depressive episode with psychotic symptoms. He also found no evidence that the applicant was suffering from PTSD symptoms. He concurred with the view expressed in other reports that the risk of reoffending in the applicant’s case was low, and considered that the prognosis in relation to the adjustment order was favourable. He considered that whilst it was frustrating for the applicant to be wearing a GPS tag, the applicant was likely to adapt and was therefore fit to continue to remain on the GPS tag if that was regarded as necessary by the court.

Following the receipt of this report the respondent conducted a further review of the applicant’s electronic monitoring condition on 17^th July 2023. In that review account was taken of the report of Dr Spoto and the conclusion was reached by the respondent that it remained appropriate for the electronic monitoring condition to continue. The applicant has been subject to that condition thereafter and up to the date of the hearing.